Brett Kavanaugh Supreme Court nomination

President Donald Trump nominated Judge Brett Kavanaugh to become an Associate Justice of the Supreme Court of the United States with an announcement on July 9, 2018, filling the vacancy left by the retirement of Anthony Kennedy.[1] When nominated, Kavanaugh was a sitting judge of the United States Court of Appeals for the District of Columbia Circuit, to which he had been appointed by George W. Bush in 2006.

Kavanaugh's confirmation hearings before the Senate Judiciary Committee began on September 4 and lasted four days, ending on September 7.[2] The hearings were interrupted numerous times by senators from the Democratic party, who objected to the withholding of documents from Kavanaugh's time as a White House attorney during the George W. Bush administration.[3] The hearings were also interrupted by a number of protesters, at least 227 of whom were arrested.[4]

During the confirmation process, Kavanaugh was accused of sexually assaulting Christine Blasey Ford, currently a professor in clinical psychology at Palo Alto University, while they were both in high school. The therapist's notes from Ford at the time, parts of which were released on September 16, 2018, confirm that she had stated that she was assaulted by students "from an elitist boys' school", who eventually became "highly respected and high-ranking members of society in Washington", although the notes do not mention Kavanaugh by name. Notes from another session a year later also confirm that Ford had previously described a "rape attempt" while in high school. In August 2018, Ford additionally passed a polygraph test about the allegations against Kavanaugh.[5][better source needed][6] The allegations were denied by Kavanaugh.

The Senate Judiciary Committee had been scheduled to vote on the confirmation on September 20[7] to determine whether the nomination will go to the full Senate for a vote.[7] In response to the sexual assault allegations, the White House said it is not withdrawing its nomination.[8] On September 17, it was announced that the nomination would not proceed until the Committee has interviewed both Professor Ford and Judge Kavanaugh,[9] who are now are scheduled to testify before the Committee on September 24.[10][9][11]

Background[]

Associate Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27, 2018, after having served on the court for over 30 years. His resignation took effect on July 31, 2018.

From 1993 to 1994, Kavanaugh served as a law clerk for Justice Kennedy.[12]

Nomination to the Supreme Court[]

Kavanaugh was officially announced as the nominee for Associate Justice of the Supreme Court of the United States on July 9, 2018, selected as the Supreme Court nominee from among a list of "25 highly qualified potential nominees" considered by the Trump Administration.[13] Reasons cited by President Trump for the nomination of Kavanaugh included his "impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law" with the emphasis that "what matters is not a judge’s political views, but whether they can set aside those views to do what the law and the Constitution require."[14]

Kavanaugh's nomination must be confirmed by the United States Senate before his appointment to the Supreme Court. Kavanaugh has stated that if he is confirmed by the Senate, he will "keep an open mind in every case" and that he "will always strive to preserve the Constitution of the United States and the American Rule of Law".[14]

Voting alignment[]

In reference to Kavanaugh's voting alignment if successfully confirmed, FiveThirtyEight used Lee Epstein et al.'s Judicial Common Space scores[15] (which are not based on a judge's behavior, but rather the ideology scores of either home state senators or the appointing president) to find that Kavanaugh would likely be more conservative than Justices Samuel Alito and Neil Gorsuch, but less conservative than Justice Clarence Thomas, if placed on the Supreme Court.[16] During the confirmation process Senator Ted Cruz, stated that Kavanaugh joined Judge Merrick Garland's [President Obama's Supreme Court pick] rulings on 28 out of 30 cases, and he joined his opinions 27 out of 28 cases.[17]

The Washington Post's statistical analysis estimated that the ideologies of most of Trump's announced candidates were "statistically indistinguishable" and placed Kavanaugh between Justices Neil Gorsuch and Samuel Alito.[18]

Responses from notable organizations and persons[]

Nomination[]

Support[]

Kavanaugh and his family with President Donald Trump during his announcement as nominee in 2018

Senate Republicans have expressed support for Kavanaugh's nomination. Senate Majority Leader Mitch McConnell has stated his intent to support the nomination, referring to Kavanaugh as "highly regarded throughout the legal community".[19] At the time of the nomination, the Republican Party held a functional 50–49 majority in the Senate, with Arizona Senator John McCain's treatment for glioblastoma brain cancer keeping him from the Senate since December 2017.[20] After McCain's death on August 25, 2018 the governor of Arizona Doug Ducey named former Senator Jon Kyl as his replacement. Kyl was sworn in on September 5, 2018. Prior to the selection, Kyl had been working for Kavanaugh's confirmation.[21][22][23][24]

Yale Law School's professor Akhil Reed Amar, a leading expert on Constitutional Law and Originalism,[25] whose notable students include Kavanaugh, Chris Coons, and Cory Booker, called the nomination of Kavanaugh Trump's "finest hour, his classiest move". Amar also remarked that Kavanaugh "commands wide and deep respect among scholars, lawyers, and jurists".[26] Self-described "liberal feminist lawyer" Lisa Blatt also said that "Democrats should support Kavanaugh."[27] Benjamin Wittes, an official at the Brookings Institution and the Hoover Institution and a vocal critic of Donald Trump, expressed support for Kavanaugh but said that he would be confirmed "for all the wrong reasons" in an article attacking partisanship surrounding Supreme Court nominations.[28] The American Bar Association gave Kavanaugh a unanimous "well qualified" rating for his nomination.[29][30][31] Robert S. Bennett, an attorney who represented President Bill Clinton during the Lewinsky scandal (opposite Kavanaugh, who worked for independent counsel Kenneth Starr), stated that he supported Kavanaugh's confirmation.[32]

In their blog, The Libre Initiative, a group of "Hispanic pro-liberty activists" encourage Latinos to support Kavanaugh.[33] The Latino Coalition (TLC), established in 1995 by Hispanic business owners, also support Kavanaugh.[34]

Opposition[]

A number of Senate Democrats, including Senate Minority Leader Chuck Schumer, have stated intent to oppose Kavanaugh's confirmation.[19]

It was also reported by Vox that some social conservatives are disappointed that Trump nominated Brett Kavanaugh. The American Family Association, a socially conservative organization founded in 1977, immediately called on its members to rally against Kavanaugh, another organization, March for Life, had concerns about Kavanaugh that its leadership shared with Vice President Mike Pence, arguing that the judge lacked the "backbone" to overturn Roe v. Wade.[35]

An open letter rebuking Yale Law School over a press release celebrating Kavanaugh's nomination was signed by over 600 of its alumni.[36][37]

The American Civil Liberties Union has stated that has Kavanaugh's record "demonstrates hostility to international law as a constraint on government action as well as an unwillingness to hold the government to account when it violates the constitutional and human rights of U.S. citizens and noncitizens" and that his "approach would give the president exceedingly broad and dangerous powers".[38]

Deb Haaland and indigenous women at Stop Kavanaugh Rally on US Capitol Grounds, April 9, 2018

A number of progressive groups have joined together to launch a campaign known as #WhipTheVote to rally opposition to Kavanaugh's nomination, aimed particularly among moderate and conservative Democrats. "Democratic senators should be united in opposition to Kavanaugh, instead of letting Republican senators ram through the confirmation of a nominee who was selected to protect the president from prosecution,” reads a statement from the effort's website.[39] An open letter from Native Americans called upon Senators to closely examine Kavanaugh's record regarding Native peoples, and they felt that he had failed to acknowledge the sovereignty, natural resources, and history and heritage of Native people.[40]

As of August 2018 Kavanaugh had not committed to recusing himself from Trump or Mueller-related matters, "including a possible constitutional fight over a subpoena of the president."[41] Documents from Kavanaugh's time as a lawyer in the Bush administration show he believes there are "constitutional problems" with limits on campaign contributions to political candidates.[42]

Senate confirmation process[]

During a discussion at George Washington University Law School, Supreme Court Justice Ruth Bader Ginsburg criticized the Senate hearings that had dissolved into a "highly partisan show". Bader Ginsburg highlighted how her confirmation and Supreme Court Justice Antonin Scalia's confirmation were "truly bipartisan".[43] Supreme Court Justice Clarence Thomas spoke out about the at times theatrical aspect of the hearings, that the process needs honorable...people who actually ask the questions at confirmation hearings instead of Spartacus."[44] The Justices concerns about the hearings process were also seen by Supreme Court Justice Elena Kagan, who had highlighted and denounced the "tit-for-tat" that was becoming common place within the political landscape.[44]

Senate confirmation process[]

Kavanaugh's nomination was officially sent to the Senate on July 10, 2018.[45] His nomination is currently pending before the Senate Judiciary Committee, which holds 11 Republican members and 10 Democratic members.[46] As with any confirmation process, prior to the official hearings Kavanaugh and participating Senators chaired mock sessions and hearings in order to create a smooth process and identify proper conduct for the Senators and Kavanaugh.[47]

Meetings with Senators[]

Kavanaugh with Chuck Grassley
Date Meeting with... Total
July 10, 2018 Senate Majority Leader Mitch McConnell and Committee on the Judiciary Chairman Chuck Grassley*.[48] 2
July 11, 2018 Orrin Hatch*,[49] John Cornyn*, Lindsey Graham*, Mike Crapo*, and Rob Portman. 7
July 12, 2018 Dan Sullivan, Ben Sasse*, Shelley Moore Capito, and Deb Fischer.[50] 11
July 17, 2018 Thom Tillis*,[51] Ted Cruz*, Steve Daines, Johnny Isakson, and Todd Young. 16
July 18, 2018 Mike Lee*.[52] 17
July 19, 2018 Bob Corker,[53] Jeff Flake*, Dean Heller, David Perdue, James Lankford, and Mike Enzi. 23
July 24, 2018 John Kennedy*,[54] Richard Burr, and Rand Paul. 26
July 25, 2018 John Barrasso, Mike Rounds,[55] Bill Cassidy, Cindy Hyde-Smith, and Tim Scott. 31
July 26, 2018 Cory Gardner, Pat Toomey, Jim Inhofe, Lamar Alexander, and Pat Roberts. 36
July 30, 2018 Richard Shelby, Joni Ernst, and Joe Manchin.[56] 39
July 31, 2018 Roy Blunt. 40
August 1, 2018 Jim Risch,[57] Roger Wicker, Tom Cotton, John Hoeven, John Thune, John Boozman, and Marco Rubio. 47
August 15, 2018 Joe Donnelly, Heidi Heitkamp[58] Ron Johnson, and Jerry Moran. 51
August 20, 2018 Committee on the Judiciary Ranking Member Dianne Feinstein*. 52
August 21, 2018 Susan Collins, Claire McCaskill, Patrick Leahy*, Senate Minority Leader Chuck Schumer,[59] Amy Klobuchar*, and Kamala Harris*. 58
August 23, 2018 Dick Durbin*,[60] Sheldon Whitehouse*, Chris Coons*, Cory Booker*, Lisa Murkowski, and Tim Kaine. 64

* Indicates member of the U.S. Senate Committee on the Judiciary

Documents[]

Judge Kavanaugh had over 4,800 pages of opinions provided for review. On the evening of September 3, just hours before the hearing began, as part of the nomination process around 457 thousand additional documents had been produced in response to his nomination as of September 3, 2018.[61] A nominee questionnaire was also returned with 17 thousand pages of supporting documents. Over 267 thousand of the documents not already public as part of his service in the Bush administration have been released publicly.[62][63][64][65] The White House of the Trump administration has used presidential privilege to prevent the public release of over 100,000 pages of Kavanaugh’s records of his service for the Bush administration.[66]

Controversially, Bill Burck, a former Bush attorney is a vetter of Kavanaugh documents.[67] Burck reportedly is a longtime friend of Kavanaugh’s.[67] Burck has represented Don McGahn, Reince Priebus, and Steve Bannon (current or former Trump White House officials) regarding special counsel Robert Mueller’s investigation.[67]

On September 6 during hearing proceedings Senator Cory Booker released a series of documents[68] to the public during a line of questioning about documents that had been deemed confidential by the committee. While releasing the documents Booker stated; "I'm going to release the email about racial profiling. I understand the penalty comes with potential ousting from the Senate."[69] Separately another confidential email from 2003, concerning abortion was leaked to The New York Times.[70] The documents themselves had been cleared for release the night before. [1]

Confirmation hearing[]

Flowchart showing process of appointment of United States Supreme Court justices.

Senate Judiciary Committee Chairman Chuck Grassley announced on August 10 that the hearings would occur prior to the November midterm elections, from September 4 through September 7 or 8.[71] It was reported by U.S. Capitol Police that between September 4th to 7th, at least 227 protestors were arrested, with most being charged with disorderly conduct, crowding or obstructing with fines paid between $35 - $50 USD. Some of the protests were commented, such as Senator Orrin Hatch (R-Utah) who stated "These people are so out of line they shouldn't even be allowed in the doggone room." His statements were echoed by President Trump who expressed concern over "...why don't they take care of a situation like that..." and "I think it's embarrassing for the country to allow protestors, you don't even know which side the protestors were on."[4]

September 4, 2018[]

The Senate Judiciary Committee confirmation hearings began at 9:30 AM, September 4, 2018, in the Hart Senate Office Building with the first hearing chaired by Senator Chuck Grassley (R-Iowa).[2] The hearing quickly became chaotic with protesters and also Senator Kamala Harris interrupting Senator Grassley's opening statement.[72] Senator Harris (D-California) had taken offense to the abrupt release of thousands [42,000] of documents related to Kavanaugh's time with President Bush, the night prior to the hearing.[73]

The hearings were delayed by one hour because of procedural questions by Kamala Harris, Cory Booker and others, who called for a delay in the proceedings[2] because of the last-minute release by former president George W. Bush's lawyer of 42,000 pages of documents from Kavanaugh's service under then-president Bush.[61] Senate Minority Leader Chuck Schumer called for a delay prior to the proceedings saying that, "Not a single senator will be able to review these records before tomorrow to delay the proceedings."[61]

The Capitol Police reported that 17 protestors were arrested in the first hour of the hearing.[72]

September 5, 2018[]

The second day of the hearing began with the Senators asking direct questions at Kavanaugh about specific incidents, or his personal position on cases or general ideas.[74] Members of the committee were allowed 30 minutes per individual to question the Judge on his record, with key points being his judicial philosophy, Roe v. Wade, and his role in programs implemented after 9/11 by the Bush administration.[75] He was also asked by Senator Kamala Harris[76] if he [Kavanaugh] had ever discussed the Robert Mueller investigation with anybody at the Kasowitz Benson Torres firm, that was founded by Marc Kasowitz a personal attorney of Donald Trump.[77]

Interruptions from protestors continued to be seen in the courtroom, with both Judge Kavanaugh and Senator Grassley and others speaking about the disruptions, with Grassley placing blame on the Democrat Senators. Grassley stated; "Democratic Senators interrupted the hearing 63 times before lunch and in the audience 70 people were arrested yesterday who were following their lead." and continued when asked by Kavanaugh if he should continue to answer over the outbursts that "Let these people have their free speech and interrupt the other 300 million people listening."[78]

September 6, 2018[]

The third day of the hearing saw Kavanaugh answering and not answering questions posed to him by the Committee. One such refusal was to comment on Senator Blumenthal's concern of Trump's "blatant, craven and repeated attacks"[79] on the federal judiciary.[80] The hearing also saw highly charged arguing between Senators whether key documents were being withheld, with Senator Booker releasing documents about the Judge through social media.[81]

September 7, 2018[]

On the fourth day and final day of the hearing outside witnesses in support or dissent of Judge Kavanaugh being appointed to the Supreme Court gave testimony to the committee on their position. One such invited individual was John Dean a former Nixon administration White House counsel who testified against the administration during Watergate.[82] Others included a survivor of the Parkland school shooting, the attorney who represented an undocumented teenager whose request for an abortion Kavanaugh was legally involved in,[83] former law clerks, students, representatives of the American Bar Association, former U.S. solicitors general during the Bush administration and former Boston Marathon running partners.[84]

Vote[]

The Senate Judiciary Committee had been scheduled to vote on the confirmation on September 20[7] to determine whether the nomination will go to the full Senate for a vote.[7] In response to the sexual assault allegations, the White House said it is not withdrawing its nomination, though President Trump acknowledged there could be a "little delay."[8] Several senators, including Jeff Flake and Lindsey Graham, said the committee should hear from Ford before the vote.[85][86]

On September 17, it was announced that the nomination would not proceed until the Committee has interviewed both Professor Ford and Judge Kavanaugh,[9] who are now scheduled to testify before the Committee on September 24.[10][9][11]

For Kavanaugh to be confirmed, he must receive a majority vote in favor of confirmation from the full Senate. If the vote is tied, Vice President Mike Pence would cast the tiebreaking vote.[87]

Sexual assault allegation[]

Letter from Ford sent to Sen. Grassley requesting an FBI investigation and detailing death threats

On September 12, 2018, the existence of a complaint against Kavanaugh, by a "woman, who has asked not to be identified", was made public, in which she accused him of trying to force himself on her when they were both in high school.[88][89] She believed the incident happened in 1982, when he was 17 and a student at Georgetown Preparatory School, and she was a 15 year old high school student.[90] The woman stated that she was able to free herself and that she has sought treatment for psychological distress subsequently.[91] Kavanaugh issued a statement through the White House that said, "I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time."[92][93]

On September 16, Christine Blasey Ford, a professor at Palo Alto University, was revealed by The Washington Post to be the author of the allegations against Kavanaugh.[94][95]

In her report to the Post, Ford stated that in the early 1980s, when she and Kavanaugh were teenagers, Kavanaugh and a male friend "corralled" her in a bedroom at a party in Maryland. According to Ford, Kavanaugh pinned her to the bed, groped her, grinded against her, and tried to pull off her clothes and covered her mouth when she tried to scream.[96] Ford said that she was afraid Kavanaugh "might inadvertently kill me" during the attack.[6] She got away when one of Kavanaugh's friends from Georgetown Prep School jumped on the bed, knocking them all over.[94][97]

Ford later attended couples counseling with her husband where she first talked about the incident in 2012. The therapist's notes from the time, parts of which were released on September 16, 2018, confirm that she had stated that she was assaulted by students "from an elitist boys' school", who eventually became "highly respected and high-ranking members of society in Washington", although the notes do not name Kavanaugh. Notes from another session a year later also confirm that Ford had previously described a "rape attempt" while in high school.[94]

GOP Senators have given Ford the option to testify before the Senate Judiciary Committee either in public or in private.[98][99][100]

On September 18, 2018, Professor Anita Hill penned an op-ed for The New York Times in which she makes compared her accusations of sexual harassment against Clarence Thomas in 1991 to the current accusations against Kavanaugh. In it, she wrote, "That the Senate Judiciary Committee still lacks a protocol for vetting sexual harassment and assault claims that surface during a confirmation hearing suggests that the committee has learned little from the Thomas hearing, much less the more recent #MeToo movement."[101][102] She advocated for improvements to the ways in which these accusations are handled, and wrote, "The details of what that process would look like should be guided by experts who have devoted their careers to understanding sexual violence. The job of the Senate Judiciary Committee is to serve as fact-finders, to better serve the American public, and the weight of the government should not be used to destroy the lives of witnesses who are called to testify."[101]

See also[]

References[]

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